Rodin’s The Burghers of Calais: An Original Reproduction
A French court’s recent sentence of two dealers for selling reproductions of Rodin sculptures marked the end of a case that had spanned almost two decades. (Noce 2019). While copyright generally controls the reproduction of works of art, what is the legal basis for this crime when the works are in the public domain? While several of Rodin’s works appear to be ubiquitous, are posthumous bronze reproductions of Rodin’s sculptures forgeries, reproductions, or original works of art?
Towards the end of his life, Rodin donated his works and his rights of authorship to the state of France, which in turn created the Musée Rodin to preserve the artist’s legacy. The Musée oversees Rodin’s most famous works, including his poignant monument to French heroism and sacrifice, The Burghers of Calais (1884-1895). An aspect of this legacy involves the dissemination of the artist’s works, which Rodin himself during his lifetime recognized as important. The nature of the sculptural process enables multiple reproductions leading to greater diffusion of the artist’s expression. However, both the art and legal communities demand originality and authenticity as parameters of value and significance. The avenues which both art and the law navigate to determine originality may seem circuitous, requiring careful investigation for each sculptural work. Using Rodin’s The Burghers of Calais, an examination into the status of a hypothetical new reproduction of the sculpture offers an interesting approach to understanding the scope, meaning, and control of, seemingly incongruous, “original reproductions.”
Rodin’s Legacy: The Burghers of Calais
French sculptor Auguste Rodin (1840-1917) created and designed representations of universal emotion and conflict with widespread popular appeal that also acknowledged the materiality and practice of sculpture. Rodin’s sculptures are free from the traditional representations of allegory and idealization and instead reveal the spiritual dignity of individuals. (Lampert 2003). Promoting the wide availability of his art, Rodin encouraged the reproduction and dissemination of his works in bronze. Rodin’s dedication to the dissemination of his works, however, collided with his simultaneous attentiveness to quality control, which in turn has extended to his artistic legacy after his death. (Hussey 2004, 773).
The bronze process typically begins with the artist creating a model in clay, wax, or plaster. Most of Rodin’s work was sand cast, during which the model is pressed into special sand leaving a negative imprint from which the solid positive cast is made. This process allows for multiple bronzes to be cast from a single model. While Rodin was concerned about the patina applied to the bronze cast, he may not have consistently inspected each bronze himself as it returned from the foundry. (Elsen, Introduction 1981, 15). Rodin regarded unauthorized casts from his plasters as not genuine and casted on demand. A surplus of bronze sculptures waiting to be sold at a dealer, therefore, did not exist during the artist’s lifetime. (Elsen, Introduction 1981, 15). Rodin, however, did adapt his reproductions to meet the demand for reduced versions of the sculpture. (Elsen 2003, 23).
The Burghers of Calais
Rodin’s The Burghers of Calais was commissioned in 1881 by the City of Calais and unveiled in June 1895. With this particular commission, Rodin wanted to share a narrative of French patriotism and sacrifice. (Butler 1993, 211). According to Jean Froissart’s Chronicles, King Edward III of England laid siege to Calais during the Hundred Years War in 1347. With the people of Calais starving during this 11-month siege, six leading citizens of Calais, led by Eustache de Saint-Pierre, offered themselves up as hostages in exchange for the city’s freedom. King Edward agreed to the deal and ordered the burghers to dress in plain, tattered garments with nooses around their necks and to walk barefoot to the English camp with the keys to the city. While the King wanted the burghers executed, Philippa, his wife, persuaded the King to spare them.
Rodin poignantly depicts this moment when the men believe they are going to die, memorializing the vulnerable yet heroic action. The “gaunt figures express indecision as much as self-sacrifice” and other complex emotions in the face of death. (Lampert 2003). Instead of a representation of romanticized heroism, Rodin intended to “show the truth of history” in a body weakened by the siege. (Elsen 2003, 61). The enlarged feet emphasize faltering steps, while the taunted muscles convey physical stress. Rodin depicted the six central figures at ground level, unlike the typical nineteenth-century monuments of a lone figure on a high pedestal. (Butler 1993, 201). This absence of the pyramidal structure was controversial. Placing the figures on the ground and not on a pedestal, according to Rodin, reminds the passersby of “the living past in their midst.” (Elsen 2003, 61).
During the creative process, Rodin made a plaster maquette that focused on the body types and gestures but did not contain all the detail of the final work. (Butler 1993, 201-203). Rodin exhibited the completed plaster at Georges Petit’s gallery in 1880 as part of a show with Monet. Before Rodin’s death in 1917, three more casts were made. Recognizing that the individual figures would have greater market potential, Rodin reworked the base to send individual burghers to exhibitions, collectors, and museums. (Elsen 2003, 62).
Originality in the Law
Many different legal concepts are at play when considering the creation, production, dissemination, and reproduction of art. The particular legal status of Rodin’s works adds certain nuances to these concepts.
In April 1916, Rodin donated his art, writings, and associated rights to the State of France to ensure future public access to his work. The transfer permitted Rodin to reserve, during his lifetime, the right of reproduction of the works donated to the State. Under these terms, a contract with a third party for casting could not have extended for a period greater than five years and the number of reproductions of each work could not have exceeded 10. (Laurent 1981, 285). Rodin’s will solidified the future oversight and care of his donation by the state, with the Musée Rodin currently holding this responsibility. According to the terms of Rodin’s will, the Musée Rodin can authorize complete editions of bronzes from the donated stock of plasters. This provision for posthumous casting of the work underpins the discussion of originality with Rodin’s bronzes.
In addition to the works themselves, Rodin’s will transferred his intellectual property rights to the State, which are currently held by the Musée Rodin. Under France’s Intellectual Property Code, authors have the right to exploit their works in any form and to derive monetary profit for the duration of life of the author plus seventy years. (Code de la propriété intellectuelle art. L 123-1 (Fr.)). In addition to these economic rights, the Intellectual Property Code also outlines the moral rights of attribution and integrity of the work held by the author. (Code de la propriété intellectuelle art. L 121-1 (Fr.)). Moral rights protect the personal and reputational, rather than purely economic, value of the work derived from the connection of the work to its creator. These moral rights are perpetual, inalienable, and imprescriptible, meaning these rights cannot be taken away from the artist by prescription or by lapse of time and may be transferred causa mortis to heirs.
Several decrees throughout the twentieth century have outlined the Musée Rodin’s authority to ensure the integrity and proper attribution of Rodin’s works as the holder of the sculptor’s intellectual property rights. Speaking to reproductions more generally, a March 1981 Decree requires that any reproduction must be clearly marked in a visible manner as “Reproduction”. (Décret n°81-255). This requirement does not necessarily forbid copying per se. But one scholar has questioned whether “reproduction” as used by this decree refers only to a work not produced from the original plaster or instead to any edition made from the original plaster subsequent to the first edition. (Chatelain 1981, 281-282).
A Thirteenth Bronze: Original, Reproduction, or Forgery?
Rodin’s donation to the French State reflects the artist’s interest in the public dissemination of his works, including The Burghers of Calais. The medium of bronze casting permits such distribution but simultaneously makes the work more susceptible to unauthorized reproductions and forgeries. If a bronze cast of The Burghers of Calais was made today, would the artistic and legal framework consider the copy a forgery, reproduction, or original work of art?
An Artistic Evaluation of Originality
Artists, scholars, curators, and connoisseurs have long acknowledged that the practice of sculpture inherently involves limited, numbered editions of identical multiples. (CAA 2013). The artistic community has understood that originality depends on the copy’s degree of association with the artist. (Hussey 2004, 770). The nature of the creative process for sculpture generates many different scenarios or possibilities for “original” works. (1) Some members of the art community argue that the wax or plaster model is the only true original; bronze casts are reproductions because the artist creates the wax/plaster model, as opposed to the bronze cast, directly with his or her hands. (CAA 2013). Exclusivity is inherent in this supposition. (2) Others argue that the bronze cast in addition to the plaster model is original only if the artist personally finished the cast or supervised the process. (CAA 2013). Only the bronze casts made during the artist’s lifetime could potentially be “original” in this context. Proponents of this supposition believe that the originality and authenticity of these works derive from the opportunity for the artist to guide and evaluate the reproduction. (3) Others believe that any bronze made from the plaster worked on by the artist is original regardless whether the artist is still alive. Certain professional standards, however, require that posthumous casts should be clearly identified as such on the sculpture. (CAA 2013). (4) Further from the “artist’s hand,” others believe that a bronze made with the artist’s authorization or even a bronze that represents the artist’s idea, regardless of the artist’s supervision or authorization, is original and authentic. The variations among these different standards derive from whether one believes originality derives only directly from the artist’s hand.
For a bronze reproduction of The Burghers of Calais, the art community looks to the authority of the Musée Rodin to determine the authenticity of bronze casts of Rodin’s sculptures. The Musée Rodin views that only the posthumous bronzes it produces are original, authentic, and legitimate Rodin works, seemingly following the third supposition discussed above. (Musée Rodin n.d.). The originality of these posthumous bronzes derives from their casting from the plasters, which the Musée Rodin possesses, made by Rodin or under his authority. The Musée Rodin has declared unauthorized exact copies as forgeries. Under the art community standards, as articulated by the Musée Rodin, a bronze cast of The Burghers of Calais made by another artist/entity other than the Musée Rodin, therefore, would qualify as a forgery and not an original or a reproduction.
A Legal Evaluation of Originality
While the art community follows the authority of the Musée Rodin, from where does such authority originate? How does the law, which generally feels uneasy with subjective standards, objectively determine whether a bronze cast is an original, reproduction, or a forgery? The French General Code of Taxes defines original sculptural works as productions or assemblages “executed entirely by the artist’s hand” and further explains that “castings of sculpture in a series [must be] limited to eight copies and supervised by the artist or his beneficiaries.” (Chatelain 1981, 281, n. 9)(quoting the General Code of Taxes). While this definition is only binding in fiscal matters, other legal decrees refer to this standard or draw similar numerical boundaries.
The September 1978 Decree issued by the French Ministries of Culture and Finance, regulating the internal administration of the Musée Rodin, states that original bronze castings reproduced and sold by the Musée “are executed from models in terra cotta or plaster realized by Rodin and under the direct control of the Museum” and that casting from each of these models “cannot in any case exceed twelve”. (Décret n° 78-266).
A legal basis from which the Musée can regulate the scope of originality derives from its status as the holder of the artist’s intellectual property rights, including the artist’s moral rights and right of reproduction. (Décret n°93-163). Unlike U.S. law where moral rights are generally for the life of the author, moral rights under the French system are perpetual and thus can be exercised by heirs of the artist, in this case the Musée Rodin. While a reproduction of a public domain work is not alone a moral rights violation, an unfaithful or unauthorized reproduction of an original work may violate an artist’s moral rights. A cast made via the practice of surmoulage, casting from a cast, for example, may violate an artist’s right of integrity because this particular method produces demonstrably diminished definition in the work. (CAA 2013). Poorly made reproductions can disrupt the artist’s vision, violating his moral right in his work. (Weiss 2014). Unauthorized reproductions, likewise, may violate the artist’s right of attribution, by attributing to the artist a work which he did not create. Such reproduction cannot bear the signature of the artist under this right.
Under this legal framework, no more than twelve reproductions of The Burghers of Calais can legally be made. In addition to the first cast in Calais, other bronzes stand in Paris, Philadelphia, Copenhagen, Belgium, London, Basel, Washington, D.C., Tokyo, Pasadena, New York City, and Seoul. A thirteenth cast of The Burghers of Calais would exceed the numerical limitations under the law. Moreover, the Musée Rodin, in legal possession of Rodin’s plaster of The Burghers of Calais, would not permit access to the plaster to allow for a thirteenth reproduction, consistent with the authority bestowed to the museum. Even if a thirteenth reproduction was legal under French law, casting from a more accessible bronze cast would produce an inferior reproduction violating Rodin’s artistic vision and his moral rights.
While the status of any future reproductions of The Burghers of Calais would, under both legal and artistic consensus, appear to be forgeries or at the very least unauthorized reproductions, if even such a distinction can be made in this context. The various concepts around originality produced by artistic practices and legal norms are still confusing. Perhaps the best way to consider posthumous bronzes is the term “original editions,” which acknowledges the artist’s hand and also the reproductive nature of the technique. (Chatelain 1981, 277-278). Originality implies uniqueness while edition implies multiplication under controlled or limited circumstances. Originality in sculpture, as opposed to painting, denotes quality and not necessarily “the first.” Yet original edition can also signal rarity and thus considerable value. The process of creating a sculpture inherently requires the hands of many others besides those of the artist. The artistic definition of originality and the legal interpretation of the appropriate term or phrase must acknowledge the humanity behind the inspiration and process to create an enduring monument experienced by many generations, such as The Burghers of Calais.
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Noce, Vincent. 2019. Two art dealers sentenced over 'fake-genuine' Rodin sculptures after 18 year legal battle. April 24. Accessed June 30, 2019. https://www.theartnewspaper.com/news/after-18-years-two-art-dealers-sentenced-over-fake-genuine-rodin-sculptures.
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Code de la propriété intellectuelle (Fr.).
Décret n° 78-266 du 8 mars 1978 fixant le régime administratif et financier des écoles nationales supérieures d'architecture.
Décret n°81-255 du 3 mars 1981 sur la répression des fraudes en matière de transactions d’oeuvres d’art et d’objets de collection.
Décret n°93-163 du 2 février 1993 relatif au musée Rodin.
Hussey, Deborah M., The Sine Qua Non of Copyright, 51 J. Copyright Soc’y U.S.A. 763 (2004).
(Translations are by the author unless otherwise noted)